Driving Bans Loom in Germany as Court Rules Against Diesel

The Diesel DelusionCourt Ruling Could Change Future of Mobility in Germany

A major court ruling in Germany on Tuesday means that millions of diesel cars may soon be banned from city centers in the country. The verdict clearly exposes the vast failings of German policymakers over the years and their cozy relationship with the automobile industry. By DER SPIEGEL Staff

"It took long enough." That's what Dieter Janecek thought to himself when he learned of the Federal Administrative Court's ruling on Tuesday that allows German cities to ban diesel vehicles from city centers due to excess nitrogen oxide emissions.

To be precise, it took 13 years, with the first European Union air quality standards entering into force way back in 2005. Janecek was still living in Munich that year, on the busy arterial Landshuter Allee, where balconies were regularly coated in black soot. Nearby was an air quality monitoring device and the values it measured were posted on the internet even back then. On Easter Sunday 2005, he had what he needed. "That was the 36th day that year that limits on fine particulate matter were violated, and that was one day too many," Janecek says. Together with the group Environmental Action Germany he filed a lawsuit to force the city to uphold the limits.

Today, Janecek is a member of German parliament, but at the time he became a pioneer in the fight for better air quality as a university student. And the Bavarian judges belittled him, rejecting his complaint on the grounds that it was disproportionate. But the issue still ended up before the Federal Administrative Court in Leipzig and even then, the judges asked representatives of the state of Bavaria: "Why do you think you can ignore prevailing law?"

A legitimate question.

A question the justices in Leipzig once again considered earlier this week -- and to which they have now provided a clear answer.

There was no shortage of people trying to find their way into the gold-ornamented, oak-bedecked Great Courtroom on Tuesday. And no wonder: Essentially, diesel itself was sitting in the dock, that celebrated invention of German engineers, the pride of the country's automobile industry. An industry that now faces existential questions following the ruling announced by Judge Andreas Korbmacher.

An End to the Primacy of Automobiles

With it's elevated emission values, diesel has long since become more than just a plague on our city centers. It is also a synonym for a vast environmental policy gaffe. And for the complete failure of policymakers, who didn't prove themselves up to the task of prioritizing the health of German citizens over that of the powerful automobile industry.

Essentially, the judges have adjudicated an end to street traffic as we know it. They have put an end to the primacy of automobiles because, in addition to individual freedom, driving also means the destruction of the environment and of public health.

The case decided in the Leipzig-based court was focused on the question as to whether the cities of Düsseldorf and Stuttgart were allowed to ban diesel automobiles from their city centers to adhere to legally mandated air quality standards. During oral arguments a week ago Thursday, Judge Korbmacher left little doubt as to where he thought the blame lay: It is, he said, "an embarrassment" for the federal government that it didn't address the problem of elevated nitrogen oxide concentrations itself. He said the ruling was primarily a message to the federal government, adding that Berlin had the requisite "legal power" to take action.

Translated into layman's terms, that means that if Berlin had duly passed the necessary regulations to keep particularly dirty diesel out of the city centers and established exceptions for cleaner car engines, then Korbmacher wouldn't have had to address this case.

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In his oral opinion on Tuesday, the judge continued his criticism of the government's behavior. The parameters set out by the EU are "explicit," Korbmacher said, which precludes referring the legal dispute on to the European Court of Justice. His message was clear: Germany has to do its own policymaking homework.

Significant Limitations

As such, the task is clear, as is the court's fundamental position: The health of each individual citizen has absolute priority over industry interests. And if health can only be protected by introducing driving bans, then driving bans will have to be introduced.

The ruling sent shock waves throughout the country. The court has taken to task 60 German municipalities and three German automobile companies, but mostly it has castigated the Chancellery and the responsible ministries. And it has shown the car nation of Germany its limits.

The millions of diesel vehicle owners must now come to terms with significant limitations on where they can drive in addition to plunging resale values for their cars. For older models, experts are assuming a 15 percent loss of value as a result of the ruling.

The court in Leipzig has clearly highlighted the failures of German politicians and agencies as well as of the automobile industry. It is a failure that has come at the cost of public health and urban quality of life -- and one that will now hit the pocketbooks of unsuspecting buyers.

And it primarily stems from the state's willingness to become an accomplice to the automobile industry. Berlin failed to stop widespread emissions fraud, even subsidizing the sale of diesel vehicles with tax breaks. Ultimately, in other words, the state was an active participant in worsening urban air quality, despite knowing better.

Former Chancellor Gerhard Schröder used to be proud of the informal appellation "automobile chancellor." For Angela Merkel, though, her proximity to automobile executives in Munich (BMW), Wolfsburg (VW) and Stuttgart (Daimler) could become a serious problem. Drivers are not likely to be amused by the fact that the German government first advised them to buy diesel vehicles only to be told now that their cars are so dirty that they aren't allowed to drive them in city centers.

The government, from the chancellor to the environment minister, initially stayed out of the public eye when the verdict was announced. But there was a rush of activity behind the scenes. Officials hurriedly set to work on revising traffic regulations and vehicle codes -- in case public pressure became too great.

And it looks like that is exactly what is happening.

Political Cowardice

It was last summer, on Aug. 2, that Transportation Minister Alexander Dobrindt and Environment Minister Barbara Hendricks demonstrated the full extent of both their lack of courage and their impotence. At a press conference, they presented the paltry results of the diesel summit, a bogus event that politicians and automobile executives felt was necessary when the flood of reports of manipulated exhaust systems and excessive emissions refused to be stemmed. It was a time when city-center driving bans first began looking like a realistic possibility.

The result was a mini-compromise, the only kind possible with the automobile industry. For municipalities, there would be money for electric buses and smart traffic light systems to keep traffic moving. But when it came to dirty diesel, the car companies only had to commit to a software update -- a solution which everyone knew was by far the cheapest. And by far the worst for public health.

Even then, the cabinet members and Chancellor Merkel should have known that the plan did not go nearly far enough to significantly improve air quality in Germany's cities. Environmental groups and experts had already done the calculations, which had then been confirmed by the courts, including one in Stuttgart.

But political cowardice in the face of car company executives ultimately won out. Again. Government officials in Berlin, after all, are afraid of nothing so much as pressure from the automobile industry. Even in the current coalition agreement between Merkel's conservatives and the center-left Social Democrats (SPD), the issue of "technical retrofitting" is treated with extreme care. Not just out of consideration for the automobile industry, but also for the unions in the car factories, which have traditionally supported the SPD. It is, in short, a grand coalition of industry allies.

Instead, political leaders are fond of pointing to the National Diesel Forum as proof that they are taking the problem seriously. But a crucial meeting of the forum scheduled for January was cancelled because the Economics Ministry, led by a Social Democrat, was concerned that it would conflict with the SPD party vote on initiating coalition talks with Merkel.

The meeting was then rescheduled for Wednesday of this week, one day after the Federal Administrative Court ruling. But that session was also cancelled "due to unforeseeable commitments of important meeting participants," as a group email states.

Even now, in other words, it isn't clear that the government has recognized the need to take action.

Legal Triumphs

The man who so unsparingly revealed the cowardice of German policymakers is named Remo Klinger. A lawyer for Environmental Action Germany in Berlin, his youthfully mussed hair and outfit of jeans, sport coat and trainers don't exactly make him look like an expert in administrative law. But appearances can be deceiving.

Klinger has scored numerous court victories for environmental protection over the years, legal triumphs that have changed the face of the country. He started his career at the side of the legendary environmental lawyer Reiner Geulen, watching from up close as he fought against the nuclear power plant in Mülheim-Kärlich in Rhineland-Palatinate. Later, Klinger himself would lead the charge against the Brokdorf nuclear plant and the Gorleben radioactive waste storage site.

These days, Klinger also represents government agencies, such as in the legal battles surrounding the closure of the Berlin airport Tempelhof and the planned closure of Tegel. But he has his principles and says he won't accept all-comers. "I refuse to accept lawsuits against wind turbines," he says, because doing so would be inconsistent with his efforts against nuclear power. Soon, he will be traveling to Pakistan, where he will be working pro bono on behalf of victims of a factory fire in Karachi in their legal battle against the German discount chain Kik.

The article you are reading originally appeared in German in issue 10/2018 (March 3th, 2018) of DER SPIEGEL.

His passion, however, is for environmental causes. "Such a David vs. Goliath case really ignites my ambition," Klinger says. The fact that he emerged victorious in Leipzig is due, he believes, to a bit of legal guile. Instead of focusing on the automobile companies themselves, he zeroed in on the municipalities. "If we want to uphold limits on the emission of harmful substances, we shouldn't attack the automobile industry, but should turn to the municipalities," he said back in 2004. At the time, cities were in the process of drawing up plans to improve air quality.

In European law, Klinger found a legal approach that he would apply in the particulate-matter case brought in Munich on behalf of Dieter Janecek. And in 2008, he achieved a groundbreaking ruling at the European Court of Justice, holding that citizens can demand on the basis of law that municipalities protect their health through their air quality improvement plans.

Because the case, focusing solely on the rights of a single person, was both arduous and protracted, Klinger also secured a kind of class-action right for organizations like Environmental Action Germany to legally challenge air quality plans initiated by German cities.

Although he started with particulate matter, Klinger ultimately shifted his focus to the poisonous gas nitrogen oxide. Since 2010, an EU regulation has been in force holding that the annual average concentration of nitrogen oxide may not exceed 40 micrograms per cubic meter of air. For years, though, monitoring stations have been finding higher concentrations.

Following Tuesday's court ruling, after the camera teams had packed away their equipment, Klinger was standing in the grand hall of the courthouse smiling contentedly. His thoughts had already wandered far away from Leipzig to the dozens of other proceedings he has filed together with Environmental Action Germany against other German cities. "All of them were suspended in anticipation of today's landmark decision," said Klinger. "Tomorrow, I will be sending out the petitions to restart proceedings."